New York Employment Law Outlook 2019

by Pillsbury Winthrop Shaw Pittman LLP
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After a multitude of new employment laws were introduced in 2018, the new year is already shaping up to be another one of significant change at state and local levels.

Takeaways

  • During 2018, a slew of New York state and local legislation combatting sexual harassment in the workplace, providing partial paid family leave benefits, and introducing paid safe leave and temporary schedule change requests in New York City, were introduced or took effect.

  • In 2019, New York employers will see statewide increases in the minimum wage and the salary threshold for the administrative and executive exemptions from overtime, as well as a long list of new requirements for New York City metropolitan area employers.

  • Employers are well advised to update their employee handbooks, policies, and agreements to ensure compliance with applicable state and local requirements.

2018 was a year of sweeping change for employers and employees in New York. In the wake of the #MeToo movement, New York State and New York City reacted quickly to pass a series of laws to reduce sexual harassment in the workplace. The New York Paid Family Leave Benefits Law went into effect, providing employees eight weeks of partially paid leave funded by employee paycheck deductions. New York City amended its Earned Sick Time Act to allow employees to take “safe leave” to seek redress for victims or family members of victims of sexual assault, domestic violence, or stalking.

As of December 31, 2018, the minimum wage and minimum thresholds for exemption under New York wage and hour law have increased.

For 2019, local laws have been passed throughout the NYC metropolitan area, providing employees additional benefits and protections, including: access to lactation rooms; sick leave benefits; and immunity from inquiries about, and compensation decisions based on, their prior salary history.

2018 New York Employment Law Changes

I.  Increased Paid Family Leave Law Benefits in 2019
Although passed in 2017, eight weeks of partial paid leave benefits under the New York Paid Family Leave Benefits Law first became available to employees in 2018. In 2019, employees are now eligible to take up to 10 weeks of leave and can receive up to 55% of their average weekly wage, up to a maximum of 55% of the statewide average weekly wage, $1,357.11. The maximum weekly benefit in 2019 will therefore be $746.41. In addition, beginning February 3, 2019, employees will be permitted to use paid family leave to care for family members who are preparing or recovering from organ or tissue donations.

II.  Sexual Harassment Prevention Legislation
In mid-2018, in response to the #MeToo movement, New York State and New York City both passed laws addressing sexual harassment in the workplace. Employers must provide anti-sexual harassment policies to all their employees, and, by the end of 2019, need to provide employees (and in some instances, independent contractors) anti-sexual harassment training. Employers are prohibited from entering into agreements mandating arbitration of sexual harassment claims and, if employers and employees enter into agreements to resolve claims of sexual harassment, they must negotiate separate agreements to keep the underlying sexual harassment allegations confidential.

The following process must be followed and can be initiated by either a complainant or an employer:

  1. The separation or settlement agreement containing the nondisclosure requirement, or at least the nondisclosure requirement itself, must be provided to all parties, with the complainant having at least 21 days to consider the requirement;
  2. After 21 days have passed, if the complainant agrees to include the nondisclosure requirement in the separation or settlement agreement, that preference must be memorialized in a separate agreement signed by all parties; and
  3. After signing that separate agreement, the complainant has seven days to revoke it. 

While the 21-day consideration and 7-day revocation periods are similar to the requirements of the Federal Age Discrimination in Employment Act (ADEA), they are not the same. The 21-day consideration period cannot be waived or shortened, as is permitted under the ADEA.

Mandatory Sexual Harassment Prevention Policies and Procedures
All New York employers must now provide a written sexual harassment policy to their employees at least once annually. The New York State Department of Labor has developed a model policy covering the minimum standards required by law, and a model complaint form, both available on New York State’s website.

All employers in New York City must also conspicuously post the required sexual harassment poster in both English and in Spanish. In addition, New York City employers must distribute a sexual harassment fact sheet to employees at their time of hire. (This can be satisfied by incorporating the fact sheet into the employee handbook or other onboarding materials.)

Mandatory Sexual Harassment Prevention Training
By October 9, 2019, every employer in New York State must annually train each of their employees on sexual harassment prevention. A similar annual employee training requirement goes into effect under the New York City law as of April 1, 2019, with new hires trained within 90 days of hire. New York City employers must provide such training to independent contractors, unless they have been trained elsewhere.

The New York State law requires all employers to provide training to all employees who spend any portion of their time working in New York State, even if not based in New York. The City law applies to employers that have employed more than 15 employees at any point in the calendar year. Independent contractors are counted as “employees.”

In late 2018, the New York City Commission on Human Rights clarified that the training requirements under the City law match the training requirements under State law, so employers will not be required to give two separate trainings for their employees in New York City.

Substantive Requirements for Training
The New York State Division of Human Rights is partnering with the New York City Commission on Human Rights to provide an online training program to be available on or before April 1, 2019. Training materials will be provided in multiple languages, including Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. Employers are required to provide training in the language(s) spoken by their employees, as long as the State provides training materials in that language.

Recordkeeping
The State does not require employers to collect signed acknowledgment forms from their employees after receiving training, although it is encouraged. New York City employers, however, must keep a record of all trainings, including signed written or electronic employee acknowledgments of the training, for at least three years.

Certification Requirements for NYS Government Contractors
As of January 1, 2019, all employers participating in competitive bidding for state or public contracts must affirm that they are in compliance with the mandatory sexual harassment prevention policy and training requirements. The certification affirms that they provide sexual harassment prevention training and policies that meet State law requirements to all their employees, not just those that work within the State.

III.  Safe Leave Added to NYC Sick Leave Law
In May 2018, New York City’s Earned Sick Time Act was amended to allow employees to use paid time off for hours taken in connection with family offense matters, sexual offenses, stalking and human trafficking, i.e. “safe leave.”

Employers may require reasonable documentation to demonstrate that the use of safe and sick leave was covered by the law.

Employers must provide written notice to their employees of their rights to take safe and sick leave upon hire and within 14 days of any changes to their safe and sick leave policy. The notice must be provided in English and an employee’s primary language if such form is available. Employers must keep written record of the “date that the Notice of Employee Rights was provided to the employee and proof that it was received by the employee,” as well as the “date and time of each instance of safe and sick leave used by the employee and the amount paid for each instance.”

IV.  NYC Employees May Request Two Temporary Schedule Changes Per Year
The New York City Fair Work Leave Law took effect on July 18, 2018, providing employees who have been employed for at least 120 days the opportunity to request a “temporary change” to their work schedule for up to two business days per calendar year for “personal events.” Employees are not required to use available paid safe and sick leave before requesting a temporary change.

“Personal events” include (i) the need for a caregiver to provide care to a minor child or care recipient; (ii) the need to attend a legal proceeding or hearing for subsistence benefits to which the employee, his/her family member, or his/her care recipient is a party; or (iii) any circumstance that could be covered by use of safe and sick leave.

2019 Minimum Wage Increases
As of December 31, 2018, the hourly minimum wage increased throughout the state, as did the minimum weekly salary threshold for an employee to qualify for the executive or administrative exemption from state minimum wage and overtime laws.

Tipped employees and employers in the fast food industry remain subject to separate minimum wage thresholds.

Upcoming 2019 Local Employment Law Changes

I.  Lactation Rooms in New York City
By March 18, 2019, employers in New York City must provide a lactation room upon request and must distribute a written lactation room policy. A lactation room must be a “sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion and that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.” The room must be in reasonable proximity to the employee work area and a refrigerator. If creating a lactation room would cause an undue hardship on the employer, the employer must engage in a constructive dialogue with employees who require a lactation room to agree on alternative accommodations.

Additionally, employers are required to provide all their employees a written lactation room policy upon hire.

The law requires that the New York City Commission on Human Rights work with the Department of Health and Mental Hygiene to develop a model lactation room request form and a model lactation policy.

II.  Likely Amendment to New York City Human Rights Law
On December 20, 2018, the New York City Council passed an amendment to the City’s Human Rights Law to prohibit discrimination in employment and discriminatory harassment or violence, based on an individual’s sexual and reproductive health decisions. Sexual and reproductive health decisions include any decision to receive services relating to sexual and reproductive health, including the reproductive system and its functions. Such services would include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion. The Mayor is expected to sign this bill into law.

III.  Westchester County Requires Employers to Provide Sick Leave
In October 2018, Westchester County passed its own paid sick leave ordinance, which will take effect on April 10, 2019, to provide sick leave to all employees aside from those covered by a collective bargaining agreement. (The law will apply to those employees once their agreement expires, unless the agreement expressly waives the Westchester sick leave law or includes a comparable benefit.) Under the law, private employers with five or more employees must provide paid sick leave to all employees who work more than 80 hours per calendar year in Westchester County, while others must provide unpaid sick leave to such employees. Employees may take sick leave for five reasons:

  • Their or their family member’s mental or physical illness, injury or health condition;
  • Their or their family member’s medical diagnosis, care or treatment of such condition;
  • Their or their family member’s preventive medical care;
  • Their place of business or their child’s day care, elementary or secondary school is closed due to a public health emergency; or
  • A public health authority determines the presence of an employee or family member in the community may jeopardize others’ health because of the individual’s exposure to a communicable disease, whether or not the individual has actually contracted the communicable disease.

The Westchester ordinance includes a broad definition of family members. Unlike the New York City law, safe leave is not covered.

Like the City law, Westchester’s law provides a minimum of 40 hours of paid sick leave per year, and employees generally accrue one hour of paid leave every 30 hours worked. Accrued but unused sick leave does not need to be paid out upon separation of employment. Accrual will begin upon hire or 90 days after the law takes effect, whichever is later. Employers may institute a 90-day waiting period before a new hire can use sick leave. Unused leave may be carried over to the following year, but employers may cap the amount of paid sick leave that can be taken per year at 40 hours.

For absences that span more than three consecutive work days, the employer may require reasonable documentation that the time off was for needed a covered sick leave reason.

All employees must be given a copy of the law and written notice of how it applies to them, within 90 days of the law’s effective date. New hires must be given the same documentation upon hire. Additionally, employers must post a copy of the law and a poster conspicuously for employees. These must be in English, Spanish and any other language deemed appropriate by the county. Employers must also keep records that document all sick leave that employees have accrued and used during the prior three years.

IV.  Westchester County Bans the Box
In December 2018, Westchester County also passed a law prohibiting employers in Westchester County from asking questions about criminal records on an initial job application. The “ban-the-box” law, which amends the Westchester County Human Rights Law, will still allow employers to ask about criminal history in job interviews and allows for a background check after the initial application is submitted, in accordance with the New York State Human Rights Law. Westchester’s ban-the-box law is scheduled to take effect on March 3, 2019.

V.  Suffolk County Joins the Ban on Salary History Inquiries
In November 2018, Suffolk County passed a bill that will prohibit employers from asking about an applicant’s compensation history or performing a search of or investigation into the employee’s compensation history. The law also prevents employers from relying on any salary history information known to them in determining the compensation of an applicant at any stage in the employment process.

When the law takes effect on June 30, 2019, Suffolk will join the five boroughs of New York City and Albany and Westchester counties in barring employers from asking about past compensation. Employers throughout the State should keep an eye on this legislation resurfacing at the State level in 2019, as a similar bill was passed in the State Assembly in 2018 but did not move in the Senate. Now that both houses of the State legislature are Democrat-controlled, a statewide ban on salary history inquiries may well be passed in 2019.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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